Albert G. Hill, III v. Albert G. Hill, Jr.
460 S.W.3d 751
Tex. App.2015Background
- Hill 3 Investments, LLC was equally owned by Albert G. Hill Jr. and Albert G. Hill III and had a receiver appointed in related prior litigation (the First Lawsuit) who filed a final report in 2010.
- In the First Lawsuit the receiver collected assets, paid liabilities, and a court-ordered distribution gave Hill Jr. 50% of remaining funds; that judgment and an agreed dismissal were final and unappealed.
- Hill Jr. later sued (this suit) under Tex. Bus. Orgs. Code §11.314 to terminate and wind up the LLC, alleging deadlock; the receiver and Hill Jr. moved for summary judgment.
- Hill III opposed summary judgment, primarily arguing (through an accountant affidavit) that the receiver’s calculation of members’ capital accounts in the prior final report was unreliable and that additional records were needed.
- The trial court denied Hill III’s continuance request, granted summary judgment ordering dissolution and a distribution scheme (giving Hill III remaining assets up to the amount previously distributed to Hill Jr., then equal split), and later approved multiple postjudgment fee applications by the receiver—assessing all postjudgment receiver fees against Hill III.
Issues
| Issue | Plaintiff's Argument (Hill III) | Defendant's Argument (Hill Jr. & Receiver) | Held |
|---|---|---|---|
| 1. Whether summary judgment was improper because receiver miscalculated members’ capital accounts | Claywell affidavit showed discrepancies and lack of underlying source documents, raising a fact issue about capital-account calculations | Receiver/Hill Jr.: Claywell’s opinions are speculative/conclusory; prior final orders resolve distribution; no additional assets shown | Court: Affidavit only raised surmise/speculation and did not create a material fact issue; summary judgment affirmed |
| 2. Whether denial of continuance was an abuse of discretion | Needed more time and documents to verify accounting and prepare expert analysis | Trial court had previously granted multiple continuances; limited materiality of requested records; Hill III had time and prior opportunities | Court: No abuse of discretion given case history, limited materiality, and lack of clear showing of what would be proved |
| 3. Whether trial court lost power to award receiver postjudgment fees after discharging receiver and while appeal pending | Final judgment discharged receiver; later fee orders (after plenary power expired) are void; mandamus relief sought | Court/receiver: Trial court retained authority to resolve discrete receivership matters, had plenary power for the first postjudgment award, and could authorize receiver to continue while appeal pending; orders were not void | Court: Trial court had jurisdiction to award postjudgment fees; mandamus denied |
| 4. Whether it was improper to assess 100% of postjudgment receiver fees against Hill III | Assigning all fees to Hill III was punitive/unsupported | Costs (including receiver fees) are within trial court discretion; prevailing party rule and Tex. R. Civ. P. apply; Hill III lost | Court: Assessment of 100% of postjudgment receiver fees against Hill III was within trial court discretion; no abuse found |
Key Cases Cited
- Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) (standard of review for summary judgment)
- Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (summary judgment affidavit requirements)
- Webb v. Jorns, 488 S.W.2d 407 (Tex. 1972) (interlocutory orders merge into final judgment)
- Browning v. Prostok, 165 S.W.3d 336 (Tex. 2005) (limits on collateral attacks on final judgments)
- Bayoud v. Bayoud, 797 S.W.2d 304 (Tex. App.—Dallas 1990) (trial court must conduct proceedings to discharge receiver)
- Bergeron v. Session, 554 S.W.2d 771 (Tex. Civ. App.—Dallas 1977) (receivership unique; discrete receivership orders)